McClary v. Wagoner , 16 Mich. App. 326 ( 1969 )

16 Mich. App. 326 (1969) 167 N.W.2d 800

McCLARY
v.
WAGONER

Docket No. 4,993.

Michigan Court of Appeals.

Decided February 28, 1969.

Marcus, McCroskey, Libner, Reamon, Williams & Dilley (Ronald D. Glotta, of counsel), for plaintiff.

Smith, Haughey & Rice, for defendants Wagoner and Hartford Accident and Indemnity Company.

A.C. Stoddard, for defendant Michigan Second Injury Fund.

BEFORE: LEVIN, P.J., and HOLBROOK and DANHOF, JJ.

PER CURIAM:

Plaintiff was employed by defendant and assigned to work as a carpenter. On May 7, 1956, he fell from a scaffold and suffered a fracture of the left os calcis.^[*] Compensation was paid voluntarily during the 500 week period following the injury.

On December 7, 1965, the plaintiff filed an application for hearing with the workmen's compensation department claiming injury to the lower extremities resulting in permanent and total disability, including "permanent and total loss of industrial use of both legs." MCLA § 412.10(b)(7) (Stat Ann 1968 Rev § 17.160[b][7]).

The referee concluded that the "plaintiff is not totally and permanently disabled within the meaning of the compensation act and, therefore, not entitled to further compensation." He made no finding of fact other than such conclusory finding. The appeal board affirmed but likewise did not make detailed findings of fact. The appeal board merely stated: "The record presented does not warrant our concluding that the referee erred in holding plaintiff is not permanently and totally disabled within the meaning of the compensation act."

Our review of findings of the appeal board is limited by controlling constitutional and statutory provisions. Const 1963, art 6, § 28; MCLA § 413.12 (Stat Ann 1968 Rev § 17.186). We cannot, however, review the findings of the board as a question of law if, as in this case, it has done nothing more than to present us with a conclusory finding in the form of the statutory language. We need to know the path the board has taken through the conflicting evidence. The appeal board should indicate the testimony adopted, the standard followed and the reasoning it used in reaching its conclusion. See United States v. Merz (1964), 376 US 192 (84 S Ct 639, 11 L Ed 2d 629), rehearing denied 376 US 973 (84 S Ct 1131, 12 L Ed 2d 87). 2 Davis, Administrative Law Treatise, §§ 16.05, 16.06. Cf. 2 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), p 594.

During the oral argument we were advised by the parties that since the appeal board's decision one of plaintiff's legs was amputated and that a new application for total and permanent disability will be filed on the basis of the changed factual situation.

We remand for further findings by the appeal board as to whether under the old and the new factual situations the plaintiff suffered the permanent and total loss of industrial use of both legs. We retain jurisdiction.

Costs to abide the event.

NOTES

[*] Os calcis == calcaneus, or bone of the heel. — REPORTER.